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No. 13-1324
_____________________________________________________________
UNITED STATES COURT OF APPEALS
FOR THE
EIGHTH CIRCUIT
_____________________________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE MILLAN-VASQUEZ,
Defendant-Appellant.
INTERLOCUTORY APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA
HONORABLE DONALD E. O’BRIEN, U.S. DISTRICT COURT JUDGE
BRIEF OF AMICI CURIAE THE AMERICAN CIVIL LIBERTIES UNION
FOUNDATION AND AMERICAN CIVIL LIBERTIES UNION OF IOWA
IN SUPPORT OF APPELLANT
_____________________________________________________________
Randall C. Wilson
AMERICAN CIVIL LIBERTIES
UNION OF IOWA
505 5th Avenue, Ste. 901
Des Moines, IA 50309
(515) 650-1980
Michael Tan
Cecillia Wang
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
Immigrants’ Rights Project
39 Drumm Street
San Francisco, CA 94111
(415) 343-0779
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
INTRODUCTION ..................................................................................................... 1
INTEREST OF AMICI CURIAE ............................................................................... 3
ARGUMENT ............................................................................................................. 4
I. UNDER THE FEDERAL BAIL STATUTE, THE EXISTENCE OF AN ICE
DETAINER AND PRIOR REMOVAL ORDER DOES NOT BAR A
DEFENDANT’S RELEASE ON BAIL. ................................................................ 4
A. A Noncitizen Defendant Must Be Treated like Any Other Defendant for
Bail Purposes Unless the Government Elects to Forgo His Criminal
Prosecution in Favor of Removal Proceedings. .................................................. 4
B. Because the Government Is in Full Control of Whether the Defendant Is
Removed from the United States, That Factor Is Not Relevant to the
Consideration of Flight Risk. .............................................................................. 9
C. Even Assuming the Consideration of Flight Risk Includes Defendant’s
Possible Detention and Removal, the Government Is Fully Capable of
Ensuring Defendant’s Availability for Criminal Prosecution. .........................14
1. The Government May Obtain a Departure Control Order to Delay
Removal Until the Conclusion of the Criminal Case. ...................................14
2. Even Without a Departure Control Order, the Government Has Complete
Control Over a Defendant’s Removal. ..........................................................17
II. NEITHER AN ICE DETAINER NOR A PREVIOUS REMOVAL ORDER
MEANS AN INDIVIDUAL WILL BE HELD IN IMMIGRATION
DETENTION OR REMOVED FROM THE UNITED STATES. ......................21
CONCLUSION ........................................................................................................24
ii
TABLE OF AUTHORITIES
Federal Cases
Arizona v. United States, 132 S.Ct. 2492 (2012) .....................................................18
Barnes v. Black, 544 F.3d 807 (7th Cir. 2008) ........................................................21
Bartholomew v. United States, 740 F.2d 526 (7th Cir. 1984) .................................19
Ochoa-Carrillo v. Gonzales, 437 F.3d 842 (8th Cir. 2006) ....................................22
Perez v. United States, 502 F. Supp. 2d 301 (N.D.N.Y. 2006) ...............................23
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ...........18
Toledo v. Warden, No. 08–3671 (NLH), 2009 WL 2182597 (D.N.J. July 21, 2009)
..............................................................................................................................20
United States v. Adomako, 150 F. Supp. 2d 1302 (M.D. Fla. 2001) ...................8, 13
United States v. Aitken, 898 F.2d 104 (9th Cir. 1990) .............................................10
United States v. Banuelos, No. 06-0547M (FMO) (C.D. Cal. Apr. 12, 2006) .......... 9
United States v. Barrera-Omana, 638 F. Supp. 2d 1108 (D. Minn. 2009) .............11
United States v. Berrios-Berrios, 791 F.2d 246 (2d Cir. 1986) ...............................10
United States v. Brown, 169 F.3d 344 (6th Cir. 1999) ............................................20
United States v. Castro-Inzunza, No. 12-30205, 2012 WL 6622075 (9th Cir. July
23, 2012) ................................................................................................................. 2
United States v. Chavez-Rivas, 536 F. Supp. 2d 962 (E.D. Wis. 2008) .................... 8
United States v. Gebro, 948 F.2d 1118 (9th Cir. 1991) ...........................................10
United States v. Himler, 797 F.2d 156 (3d Cir. 1986) ............................................... 6
United States v. Jocol-Alfaro, 840 F. Supp. 2d 1116 (N.D. Iowa 2011) .................11
United States v. Juarez, 672 F.3d 381 (5th Cir. 2012) ............................................23
United States v. Kisling, 334 F.3d 734 (8th Cir. 2003) .................................... 10, 12
United States v. Londono, 100 F.3d 236 (2d Cir. 1996) ..........................................16
United States v. Lopez-Aguilar, No. CR 93-209, 1996 WL 370160 (E.D.N.Y. Jun.
28, 1996) ...............................................................................................................16
United States v. Lozano-Miranda, No. 09-cr-20005-KHV-DJW-5, 2009 WL
113407 (D. Kan. Jan. 15, 2009) ............................................................................16
iii
United States v. Lucas, No. 4:08CR3139, 2008 WL 5392121 (D. Neb. Dec. 19,
2008) .....................................................................................................................12
United States v. Luna-Gurrola, No. 2:07-1755M (C.D. Cal. Nov. 20, 2007) ........... 9
United States v. Marinez-Patino, No. 11CR064, 2011 WL 902466 (N.D. Ill. Mar.
14, 2011) ........................................................................................................ 18, 19
United States v. Maull, 773 F.2d 1479 (8th Cir. 1985) .................................... 10, 12
United States v. Mauro, 436 U.S. 340 (1978)..........................................................20
United States v. Mendez-Morales, 384 F.3d 927 (8th Cir. 2004) ............................22
United States v. Mendoza-Lopez, 481 U.S. 828 (1987) ...........................................23
United States v. Montoya-Vasquez, No. 4:08-CR-3174, 2009 WL 103596 (D. Neb.
Jan. 13, 2009) ....................................................................................................9, 11
United States v. Morales, No. 11-cr-20132-09-KHV-DJW, 2012 WL 603520 (D.
Kan. Feb. 24, 2012) ..............................................................................................16
United States v. Neal, 564 F.3d 1351 (8th Cir. 2009) .............................................20
United States v. Patriarca, 948 F.2d 789 (1st Cir. 1991) ........................................10
United States v. Ramirez-Garcia, No. M0-00-CR-138, 2001 WL 561603
(W.D.Tex. May 22, 2001) ....................................................................................23
United States v. Rembao-Renteria, No. 07mj399 (JNE/AJB), 2007 WL 2908137
(D. Minn. Oct. 2, 2007) ................................................................................. 11, 13
United States v. Santos-Vanegas, 878 F.2d 247 (8th Cir. 1989) .............................23
United States v. Sazenski, 806 F.2d 846 (8th Cir. 1986) .................................. 10, 12
United States v. Stephens, 315 F. Supp. 1008 (W.D. Okla. 1970) ..........................21
United States v. Tapia, ___ F. Supp. 2d ___, 2013 WL 557278 (D.S.D. Feb. 12,
2013) .......................................................................................................... 9, 11, 20
United States v. Todd, No. 2:08-cr-197 (MHT), 2009 WL 174957 (M.D. Ala. Jan.
23, 2009) ................................................................................................................. 6
United States v. Villanueva-Martinez, 707 F. Supp. 2d 855 (N.D. Iowa 2010) ......11
United States v. Xulam, 84 F.3d 441 (D.C. Cir. 1996) ............................. 7, 8, 14, 22
Zadvydas v. Davis, 533 U.S. 678 (2001) .................................................................20
iv
State Cases
People v. Jacinto, 49 Cal. 4th 263 (Cal. 2010) ........................................................17
People v. Rodriguez, No. B168304, 2004 WL 2397261 (Cal. Ct. App. Oct. 26,
2004) .....................................................................................................................17
People v. Roldan, 205 Cal. App. 4th 969 (Cal. Ct. App. 2012) ..............................17
Statutes
8 C.F.R. § 215.2(a) ...................................................................................................16
8 C.F.R. § 215.2(b) ..................................................................................................16
8 C.F.R. § 215.3 ................................................................................................ 15, 17
8 C.F.R. § 215.3(g) ..................................................................................................15
8 C.F.R. § 241.4(g)(2) ..............................................................................................14
8 C.F.R. § 241.6(a) ............................................................................................ 18, 19
8 C.F.R. § 241.8(e) ...................................................................................................22
8 C.F.R. § 287.7(a) ...................................................................................................22
22 C.F.R. § 46.2(a) ...................................................................................................16
22 C.F.R. § 46.2(b) ..................................................................................................16
22 C.F.R. § 46.3 .......................................................................................................15
22 C.F.R. § 46.3(g) ..................................................................................................15
8 U.S.C. § 1231(a)(5) ........................................................................................ 17, 22
8 U.S.C. § 1252(a) ...................................................................................................22
18 U.S.C. § 3142 ............................................................................................. 1, 3, 11
18 U.S.C. § 3142(a) ................................................................................................... 5
18 U.S.C. § 3142(b) ................................................................................................... 5
18 U.S.C. § 3142(c) ...............................................................................................5, 9
18 U.S.C. § 3142(c)(1)(B)(iv) ..................................................................................14
18 U.S.C. § 3142(d) ......................................................................................... passim
18 U.S.C. § 3142(e) .............................................................................................5, 10
28 U.S.C. § 2241(c)(5) .............................................................................................20
v
Other Authorities
Exercising Prosecutorial Discretion Consistent with the Civil Immigration
Enforcement Priorities of the Agency for the Apprehension, Detention, and
Removal of Aliens (June 17, 2011) ......................................................................18
1
INTRODUCTION
This case raises a serious and recurring issue in federal criminal cases:
whether a district court should categorically deny bail under the Bail Reform Act
of 1984, 18 U.S.C. § 3142, where a defendant is subject to an immigration
“detainer” and has previously been ordered removed by an immigration judge. In
the proceedings below, the district judge upheld the magistrate judge’s order
denying bail to Defendant Jose Millan-Vasquez based on the presence of a detainer
issued by U.S. Immigration and Customs Enforcement (ICE) and a previous order
of deportation. See United States v. Millan-Vasquez, No. 5:12-cf-04102-DEO (D.
Iowa Jan. 31, 2013) [hereinafter “Slip Op.”].
This conclusion was legally erroneous and raises serious implications for
noncitizen defendants in the federal criminal system because it could be read more
broadly to impose two categorical rules contravening the requirement that bail
determinations be based on individualized consideration of flight risk and danger
to the community. First, although the district court found that Defendant lacked
significant ties to the community, weighing in favor of a finding of flight risk, see
Slip Op. at 4 n.1, 6, the court’s analysis, if upheld, would categorically mandate the
detention of a defendant subject to a detainer and with a prior removal order, even
where the court also finds that he poses no flight risk or danger and meets all the
requirements for release under the Bail Reform Act. See, e.g., United States v.
2
Castro-Inzunza, No. 12-30205, 2012 WL 6622075 , at *1 (9th Cir. July 23, 2012)
(reversing order denying bail in such circumstances). Second, the magistrate judge
appeared to hold as a matter of law that a defendant may be deemed a flight risk
based on circumstances beyond his control, such as the possibility that the federal
government might elect to remove him from the United States rather than delay his
removal in order to complete the criminal prosecution. See United States v.
Millan-Vasquez, No. 5:12-cr-04111 (DEO), at *7 (D. Iowa Dec. 19, 2012). Either
holding would contravene the basic principle of the Bail Reform Act: that custody
determinations should be made based on the individual circumstances of each case.
Amici curiae urge the Court to reverse the decision of the district court and
remand for a new detention hearing. As set forth below, the district judge’s
decision is inconsistent with the plain language of 18 U.S.C. § 3142(d), which
requires that a noncitizen defendant be treated like any other defendant for bail
purposes unless the government elects to forgo his criminal prosecution in favor of
immediate removal proceedings. Moreover, the possibility that a defendant will be
rendered unavailable by a third party such as ICE is not a factor a district court
may appropriately consider in determining whether the defendant himself poses a
risk of nonappearance—especially when that risk is entirely within the
government’s control. Yet even assuming that a defendant’s unavailability based
on government actions could be considered under the Bail Reform Act, the district
3
court erred in finding that the detainer and prior order of removal requires a
defendant’s detention. As demonstrated by extensive case law and the record
evidence in this case, the federal government has full control over a criminal
defendant subject to ICE detention and removal, and thus can delay his physical
expulsion from the United States and make him available for court appearances
until his criminal proceedings are resolved.1 And not every defendant who has
previously been ordered removed will, in fact, be removed from the United States.
In short, the existence of an ICE detainer and previous removal order should not
result in categorical ineligibility for bail under 18 U.S.C. § 3142.
INTEREST OF AMICI CURIAE
The American Civil Liberties Union (ACLU) is a nationwide, non-partisan
organization of approximately 500,000 members dedicated to enforcing
fundamental constitutional and legal rights. The Immigrants’ Rights Project of the
ACLU engages in litigation, advocacy, and public education to protect the
constitutional and civil rights of immigrants, including issues relating to the
intersection of criminal and immigration law. In particular, the Immigrants’ Rights
Project serves as a resource for the criminal defense bar and law enforcement
1 Indeed, the government itself acknowledges that it has means at its disposal to
ensure Defendant’s appearance for trial should he be released from the custody of
the U.S. Marshals. See Gov’t Statement of the Case at 17-18, United States v.
Millan-Vasquez, No. 13-1324 (8th Cir. March 14, 2013) (indicating that U.S.
Attorney’s Office will seek a writ of habeas corpus ad prosequendum if Defendant
is released); see also, Point I.C, infra.
4
agencies on issues relating to detainers issued by ICE against persons in criminal
pretrial custody or serving criminal sentences.
The American Civil Liberties Union Foundation of Iowa (ACLU of Iowa) is
the statewide affiliate of the ACLU with approximately 2,300 dues-paying
members. The ACLU of Iowa has programmatic interests that track closely with
the ACLU Immigrants’ Rights Project, and has worked to support immigration
rights groups and advocacy in Iowa with financing, projects, litigation, and public
advocacy.
ARGUMENT
I. UNDER THE FEDERAL BAIL STATUTE, THE EXISTENCE OF
AN ICE DETAINER AND PRIOR REMOVAL ORDER DOES
NOT BAR A DEFENDANT’S RELEASE ON BAIL.
A. A Noncitizen Defendant Must Be Treated like Any Other
Defendant for Bail Purposes Unless the Government Elects to
Forgo His Criminal Prosecution in Favor of Removal
Proceedings.
The district judge below relied primarily on the presence of an ICE detainer
and prior removal order to conclude that no condition or combination of conditions
would reasonably ensure the appearance of the defendant. See Slip Op. at 5
(noting that “[r]eleasing the Defendant, who is subject to certain deportation [under
a prior removal order] would essentially effect a dismissal of this case”). In doing
so, the district court failed to recognize that a specific provision of the Bail Reform
5
Act, 18 U.S.C. § 3142(d), accounts for the recurring circumstance of a federal
criminal defendant who is also subject to civil removal proceedings.
In drafting the Bail Reform Act, Congress first set out the general rubric for
pretrial detention or release, permitting one of four options: (1) release on personal
recognizance or upon execution of an unsecured appearance bond pursuant to §
3142(b); (2) release on one or more conditions specified in § 3142(c) (e.g.,
maintaining employment, travel restrictions, regular reporting to the pretrial
services agency); (3) temporary detention to permit revocation of conditional
release, deportation, or exclusion under § 3142(d); or (4) pretrial detention
pursuant to § 3142(e). 18 U.S.C. § 3142(a). Thus, with the third option, Congress
specifically anticipated a frequent circumstance in criminal cases: a criminal
defendant who may be wanted by another law enforcement agency for custody on
a different matter.
Section 3142(d) demonstrates that Congress intended for noncitizen
defendants like Mr. Millan-Vasquez to be treated like any other defendant for bail
purposes unless the government elects to forgo the criminal prosecution in favor of
immediate removal proceedings. The statute provides, in relevant part:
If the judicial officer determines that . . . [the defendant] . . . is not a
citizen of the United States or lawfully admitted for permanent
residence . . . such judicial officer shall order the detention of such
person, for a period of not more than ten days, excluding Saturdays,
Sundays, and holidays, and direct the attorney for the Government to
notify . . . the appropriate official of the Immigration and
6
Naturalization Service. If the official fails or declines to take such
person into custody during that period, such person shall be treated in
accordance with the other provisions of this section, notwithstanding
the applicability of other provisions of law governing release pending
trial or deportation or exclusion proceedings . . . .
18 U.S.C. § 3142(d) (emphasis added). Thus, the statute makes only one special
provision for noncitizen defendants who are not lawful permanent residents (or
defendants subject to custody on a different criminal charge or on a charge of
revocation of parole or probation): it permits the prosecution a 10-day window in
which to notify the other government agency that might assert custody over the
defendant, and gives that agency an opportunity to take custody of the defendant.
In the case of a noncitizen defendant, if ICE elects not to take custody, then
the bail statute provides that the defendant’s bail application should be adjudicated
under the regular provisions of Section 3142. In essence, if ICE declines to take
custody, then Section 3142(d) “admoni[shes] . . . courts not to use the immigration
status of defendants against them or as the sole basis of a detention determination.”
United States v. Todd, No. 2:08-cr-197 (MHT), 2009 WL 174957, at *2 n.2 (M.D.
Ala. Jan. 23, 2009); cf. United States v. Himler, 797 F.2d 156, 161 (3d Cir. 1986)
(rejecting government’s argument that an outstanding warrant made defendant a
flight risk and noting that under Section 3142(d), “outstanding detainers and
warrants, absent other evidence, do not require pretrial detention on the [criminal]
charges here.”).
7
Congress thus specifically addressed the circumstance of a federal criminal
defendant who is subject to a competing request for custody. In such
circumstances, Section 3142(d) provides for a sensible mechanism by which the
agencies seeking custody shall determine the order in which the defendant should
answer to the two charges—that is, whether the federal criminal prosecution
should go forward with the other agency to take custody after the criminal case is
resolved, or whether the federal prosecutor will relinquish the defendant for the
other proceeding. Section 3142(d) clearly provides that if the other agency
(whether it be a parole officer, another prosecuting authority, or ICE) does not take
custody of the defendant, then the district court shall treat the defendant’s bail
application like any other, without regard to the existence of the other pending
proceeding.
Federal courts have followed the plain language of Section 3142(d) and held
that if the government elects to go forward with the criminal prosecution first, then
the defendant is eligible for release on bail pursuant to the regular provisions of
Section 3142, without regard to the existence of an ICE detainer, prior removal
order, immigration detention statutes, or any other factors other than the ordinary
statutory considerations of flight risk and danger to the community. For example,
in United States v. Xulam, 84 F.3d 441 (D.C. Cir. 1996), the D.C. Circuit reversed
a district court order that had denied bail to a defendant on the ground that he was
8
subject to deportation proceedings. The Court of Appeals specifically pointed to
Section 3142(d), noting that if immigration authorities decline to take a defendant
into custody during the prescribed 10-day period, then the defendant should be
subject to the ordinary provisions of the Bail Reform Act. Id. at 444. “When the
government [does] not move . . . for temporary detention under section 3142(d), it
does not seem legitimate for it to now introduce the specter of a possible
deportation through the back door as a principal reason for detention.” Id.
Similarly, in United States v. Adomako, 150 F. Supp. 2d 1302 (M.D. Fla.
2001), the district court ordered the defendant’s release on a bond with conditions
of supervision, but the Department of Justice refused to release him because of an
administrative detainer issued by the Immigration and Naturalization Service
(INS), the predecessor agency to ICE. Id. at 1303. Recognizing the plain language
of Section 3142(d), the district court rejected the government’s arguments that INS
could carry out the deportation of the defendant at any time and that therefore the
administrative detention provisions of the Immigration and Nationality Act (INA)
should apply to the detention of the defendant in the criminal case. Id. at 1304,
1307. Adomako correctly concludes that under Section 3142(d), a criminal
defendant “is not barred from release because he is a deportable alien.” Id. at
1307. See also United States v. Chavez-Rivas, 536 F. Supp. 2d 962, 964 (E.D.
Wis. 2008) (rejecting government’s argument that potential detention and
9
deportation provided a basis for pretrial detention and holding that Section 3142(d)
requires the court “to treat defendant like any other offender under the Bail Reform
Act.”); United States v. Luna-Gurrola, No. 2:07-1755M, Order Re: Def. Ex Parte
Application for Hearing, at *4 (C.D. Cal. Nov. 20, 2007) (holding that Section
3142(d) “directs the court to apply the normal release and detention rules to
deportable aliens without regard to the laws governing release in ICE deportation
proceedings”); Order Re: Def. Mot. for Release, United States v. Banuelos, No. 06-
0547M (FMO), at *3 (C.D. Cal. Apr. 12, 2006) (same) (attached in Addendum);
United States v. Montoya-Vasquez, No. 4:08-CR-3174, 2009 WL 103596, at *5 (D.
Neb. Jan. 13, 2009) (noting that “the Act simply requires temporary detention and
the giving of notice by the court to immigration officials so they can investigate
and determine whether they wish to pursue filing a detainer against the alien
defendant” (citing Section 3142(d))); accord United States v. Tapia, ___ F. Supp.
2d ___, 2013 WL 557278, at *4 (D.S.D. Feb. 12, 2013).
B. Because the Government Is in Full Control of Whether the
Defendant Is Removed from the United States, That Factor Is
Not Relevant to the Consideration of Flight Risk.
The Bail Reform Act further requires the release of a person facing trial
under the least restrictive conditions that will “reasonably assure the appearance of
the person as required and the safety of any other person and the community.” 18
U.S.C. § 3142(c). The Eighth Circuit and other courts of appeals have consistently
10
interpreted Section 3142(e) to permit pretrial detention when the defendant poses
“either danger to the community or risk of flight.” United States v. Sazenski, 806
F.2d 846, 848 (8th Cir. 1986). See also United States v. Kisling, 334 F.3d 734, 735
& n.3 (8th Cir. 2003) (noting different standards for two possible grounds for
pretrial detention under Section 3142—risk of harm and flight risk); United States
v. Maull, 773 F.2d 1479, 1485 (8th Cir. 1985) (en banc) (“When the judge finds
that no condition can reasonably prevent defendant’s flight, he or she is
empowered to detain.”); United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir.
1991) (“On a motion for pretrial detention [under the Bail Reform Act], the
government bears the burden of showing by a preponderance of the evidence that
the defendant poses a flight risk” (emphasis added)); United States v. Aitken, 898
F.2d 104, 107 (9th Cir. 1990) (same); United States v. Berrios-Berrios, 791 F.2d
246, 250 (2d Cir. 1986) (“the court is obliged to determine . . . whether the
defendant is likely to flee the jurisdiction if released” (emphasis added)); United
States v. Patriarca, 948 F.2d 789, 791 (1st Cir. 1991) (a court must inquire
whether “the defendant poses a danger to the community and/or a risk of flight”
(emphasis added)).
While this Court has not squarely addressed the question, numerous district
courts in this Circuit have held that a finding of flight risk cannot be based on
circumstances outside a defendant’s control; rather, flight risk should be based
11
upon a likelihood that the defendant will fail to appear of her own volition. As
noted above, numerous district courts within this Circuit have considered
defendants for release on bail under Section 3142 despite an ICE detainer. The
courts have reasoned that the likelihood that a defendant will decide to flee—not
the likelihood of government action rendering defendant unable to appear—is the
relevant inquiry under the Bail Reform Act. United States v. Villanueva-Martinez,
707 F. Supp. 2d 855, 857 (N.D. Iowa 2010) (holding that “‘failure to appear’ as
used in the Bail Reform Act is limited to the risk that the defendant may flee or
abscond, that is, that he would fail to appear by virtue of his own volition, actions,
and will” (quoting Montoya-Vasquez, 2009 WL 103596 at *4)); United States v.
Jocol-Alfaro, 840 F. Supp. 2d 1116, 1118 (N.D. Iowa 2011) (citing Montoya-
Vasquez); United States v. Rembao-Renteria, No. 07mj399 (JNE/AJB), 2007 WL
2908137, at *2 (D. Minn. Oct. 2, 2007) (“The Court does not construe [the Bail
Reform Act] to mandate that this Court, in effect, save the government from itself
in this way.”); Tapia, 2013 WL 557278 at *5 (“The problem here is not that
defendant will absent himself from the jurisdiction, but that two Article II agencies
will not coordinate their respective efforts.” (quoting United States v. Barrera-
Omana, 638 F. Supp. 2d 1108, 1111-12 (D. Minn. 2009)); Barrera-Omana, 638 F.
Supp. 2d at 1111 (“The risk of nonappearance referenced in 18 U.S.C. § 3142 has
12
to involve an element of volition.”).2 In all of the foregoing district court cases,
bail was set based upon findings that the defendants had extensive family ties and
other factors indicating that they would appear as directed, notwithstanding the
issuance of an ICE detainer.3
These district court cases are consistent with this Court’s decisions
interpreting Section 3142. See, e.g., Sazenski, 806 F.2d at 848 (affirming denial of
bail based upon false identification documents and access to private planes and
helicopters); Kisling, 334 F.3d at 735 (affirming denial of bail based upon
defendant’s lack of employment and assets in community, previous failure to
appear, and evasion of service of process); Maull, 773 F.2d at 1488 (affirming
finding of flight risk based upon length of possible sentence and previous attempt
to flee). Amici have discovered no case in which this Court considered, in
determining the risk of a defendant’s nonappearance, anything other than whether
the defendant by her own conduct will abscond rather than appear to stand trial.
2 But see United States v. Lucas, No. 4:08CR3139, 2008 WL 5392121 at *3 (D.
Neb. Dec. 19, 2008) (noting in dicta that risk of non-appearance based on possible
removal by ICE is “not relevant to the issues of [defendant’s] absconding,” but that
situation “differs markedly from one in which a defendant has already been the
subject of a removal order” and denying bail based upon individualized factors
going to flight risk including use of fraudulent identities in the past). 3 That is not to say that a district court could never consider the alienage of a
defendant or a defendant’s awareness that she may be deported, among many other
circumstances, in considering whether there is a risk that defendant will not appear
for trial. But those facts are only relevant to the extent that they shed light on the
future conduct of defendant, rather than as evidence that the government’s actions
will remove defendant from the jurisdiction.
13
Thus, the presence of an ICE detainer and the speculative possibility that a
defendant will be removed are particularly inappropriate factors for consideration
under the rubric of “nonappearance.” Whether the defendant “is in the custody of
the Attorney General as he wears his U.S. Marshals Service hat, or as he wears his
INS hat,” the appearance of defendant at trial in such circumstances is entirely
within the government’s control. Adomako, 150 F. Supp. 2d at 1308; see also
Point I.C infra. Courts have rejected the argument the government makes here:
that the “[c]ourt must detain [the defendant] or the government will be compelled
to deport [him], thereby depriving the government of the opportunity to prosecute
[him].” Rembao-Renteria, 2007 WL 2908137, at *2 (emphasis in original). The
Bail Reform Act does not permit the court to “save the government from itself in
this way.” Id. Instead, the Act requires that the court consider whether defendant
is likely to fail to appear as a result of his own volitional act, not whether he may
fail to appear as a result of a government decision to make him unavailable for
trial.
Here, it is fully within the power of the government to delay Defendant’s
removal so that he may appear at trial. Mr. Millan-Vasquez himself has no control
over these decisions. The district court therefore erred to the extent that it relied on
the speculative possibility that Mr. Millan-Vasquez would be held in immigration
14
detention or deported in determining whether pretrial detention was justified. See
Slip Op. at 5-6.
C. Even Assuming the Consideration of Flight Risk Includes
Defendant’s Possible Detention and Removal, the Government
Is Fully Capable of Ensuring Defendant’s Availability for
Criminal Prosecution.
Even assuming a defendant’s unavailability based on the government’s
actions could be considered under the Bail Reform Act, the district court erred in
relying upon this factor. As set forth below, any concern that Mr. Millan-Vasquez
cannot appear for court in the criminal case because ICE will detain and remove
him is unfounded as a matter of fact and law. Indeed—as the government partially
acknowledges here—the government has numerous tools at its disposal to ensure
that a defendant is not removed prior to the conclusion of his criminal proceedings.
See Gov’t Statement at 17-18 (discussing habeas corpus ad prosequendum).
1. The Government May Obtain a Departure Control
Order to Delay Removal Until the Conclusion of the
Criminal Case.
As a practical matter, the district court frequently will require surrender of
the defendant’s passport or other travel documents as a condition for pretrial
release. 18 U.S.C. § 3142(c)(1)(B)(iv); cf. Xulam, 84 F.3d at 443. Without such
travel documents, ICE will not be able to carry out the defendant’s removal. See 8
C.F.R. § 241.4(g)(2) (directing ICE to obtain travel documents in order to
effectuate removal).
15
Moreover, where ICE has issued a removal order for a defendant whom the
district court has released under the Bail Reform Act, the United States Attorney’s
Office may avail itself of a regulatory mechanism—namely, a departure control
order—for delaying a defendant’s removal. Upon the request of any prosecuting
authority—whether federal or state—ICE will delay the removal of a noncitizen
who is a defendant in a criminal case. The Department of Homeland Security and
the Department of State have promulgated identical regulations enumerating
specific categories of noncitizens whose departure is deemed “prejudicial to the
interests of the United States.” 8 C.F.R. § 215.3; 22 C.F.R. § 46.3. One subsection
of those regulations specifically lists certain criminal defendants as among those
whose departure would be “prejudicial”:
Any alien who is needed in the United States as a witness in, or as a
party to, any criminal case under investigation or pending in a court in
the United States: Provided, That any alien who is a witness in, or a
party to, any criminal case pending in any criminal court proceeding
may be permitted to depart from the United States with the consent of
the appropriate prosecuting authority, unless such alien is otherwise
prohibited from departing under the provisions of this part.
8 C.F.R. § 215.3(g) (emphasis in original); see also 22 C.F.R. § 46.3(g) (same).
An accompanying regulation provides that:
[an ICE] departure-control officer who knows or has reason to believe
that the case of an alien in the United States comes within the
provisions of § 215.3 shall temporarily prevent the departure of such
alien from the United States and shall serve him with a written
temporary order directing him not to depart, or attempt to depart, from
the United States until notified of the revocation of the order.
16
8 C.F.R. § 215.2(a); see also 22 C.F.R. § 46.2(a) (same). The temporary order
becomes final 15 days after service upon the noncitizen, unless he requests an
administrative hearing before a special inquiry officer.4 8 C.F.R. § 215.2(b); 22
C.F.R. § 46.2(b). Thus, once a prosecutor informs ICE that a noncitizen is a
defendant in a criminal case, ICE shall not remove that noncitizen from the United
States.
Indeed, numerous federal district courts have released criminal defendants
on bail, noting the use of a departure control order to block the removal of the
defendant. See, e.g., United States v. Morales, No. 11-cr-20132-09-KHV-DJW,
2012 WL 603520, at *2 (D. Kan. Feb. 24, 2012) (rejecting prosecution’s argument
that defendant posed flight risk because of ICE detainer and noting that 8 C.F.R. §
215.3 prevents departure unless prosecution consents); United States v. Lozano-
Miranda, No. 09-cr-20005-KHV-DJW-5, 2009 WL 113407, at *3 n.13 (D. Kan.
Jan. 15, 2009) (same); see also United States v. Lopez-Aguilar, No. CR 93-209,
1996 WL 370160, at *3 (E.D.N.Y. Jun. 28, 1996) partially vacated on other
grounds by United States v. Londono, 100 F.3d 236 (2d Cir. 1996) (admonishing
the prosecutor for failing to make use of a departure control order to prevent the
deportation of defendant before sentencing).
4 As the regulation implicitly recognizes, the Due Process Clause of the U.S.
Constitution requires procedural protections for a person subject to a departure-
control order.
17
State courts also have noted the availability of a departure control order in
state criminal cases, not only as applied to defendants but even to witnesses. See,
e.g., People v. Jacinto, 49 Cal. 4th 263, 274 (Cal. 2010) (noting that departure
control orders are available to prevent deportation of witness and ensure his
appearance at trial); People v. Roldan, 205 Cal. App. 4th 969, 983 (Cal. Ct. App.
2012) (noting that “the prosecution could have sought to delay [witness’]
deportation under federal regulations, which recognize it is generally in the best
interests of the federal government to temporarily delay the departure of an illegal
alien who is needed as a witness in a pending criminal case” (citing 8 C.F.R. §
215.3); People v. Rodriguez, No. B168304, 2004 WL 2397261, at *9 (Cal. Ct.
App. Oct. 26, 2004) (same). It is thus within the power of the U.S. Attorney to
ensure that defendant will not be removed prior to the conclusion of his criminal
proceedings.
2. Even Without a Departure Control Order, the
Government Has Complete Control Over a Defendant’s
Removal.
Even without a departure control order, the government is entirely capable
of deferring a detained defendant’s removal until the conclusion of the criminal
case. Indeed, in the instant case, when ICE took custody of the defendant in
October 2012, ICE could have deported him in the first instance under the prior
order of removal. See 8 U.S.C. § 1231(a)(5). However, ICE did not do so, but
18
instead held the defendant so that the United States Attorney’s Office could
exercise its discretion to prosecute him. See Gov’t Statement at 5. “By delivering
the defendant to the United States Attorney’s Office in this case, rather than simply
deporting him immediately, ICE yielded to the judgment of the prosecutorial arm
of the Executive Branch that the public’s interest in criminally prosecuting the
defendant was greater than the public’s interest in swiftly deporting him.” United
States v. Marinez-Patino, No. 11CR064, 2011 WL 902466, at *7 (N.D. Ill. Mar.
14, 2011). There is no reason ICE could not do so again upon defendant’s release
pursuant to the Bail Reform Act.
Indeed, ICE generally has broad authority to stay a noncitizen’s removal
from the United States as “appropriate.” 8 C.F.R. § 241.6(a) (agency “may grant a
stay of removal or deportation” to noncitizen with final removal order “for such
time and under such conditions as . . . deem[ed] appropriate”); see also Arizona v.
United States, 132 S.Ct. 2492, 2499 (2012) (“A principal feature of the removal
system is the broad discretion exercised by immigration officials,” including the
discretion over “whether it makes sense to pursue removal at all”); Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-84 (1999) (“the
Executive has discretion to abandon” immigration cases at any stage of the
litigation, including “execut[ing] removal orders”) (alteration in original);
Memorandum from John Morton, Director, Exercising Prosecutorial Discretion
19
Consistent with the Civil Immigration Enforcement Priorities of the Agency for the
Apprehension, Detention, and Removal of Aliens, at 3 (June 17, 2011), available
at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-
memo.pdf (noting agency’s discretion to stay removal). Moreover, the regulations
specifically contemplate the use of stays to allow noncitizens to testify in pending
criminal proceedings. See 8 C.F.R. § 241.6(a) (incorporating factor by reference).
This policy of facilitating criminal prosecutions with respect to witnesses applies a
fortiori to criminal defendants.5
Moreover, should the defendant be taken into ICE custody, the government
has several means of making the defendant available for court appearances in his
criminal case.6 As demonstrated by this case, when a defendant is in the custody
5 For this reason, the magistrate judge erred in concluding that 8 U.S.C. § 1231
requires the defendant’s removal within 90 days of entry of the removal order. See
Millan-Vasquez, No. 5:12-cr-04111-DEO, at 8. Although Section 1231(a)(1)(A)
instructs that the government “shall remove” the alien during this period, the
statutory scheme, implementing regulations, and facts of this case make clear that
the provision is not mandatory, but merely “direct[s] the discharge of a specified
duty.” See Marinez-Patino, 2011 WL 902466, at *8 (citing Bartholomew v. United
States, 740 F.2d 526, 531 (7th Cir. 1984)). As explained supra, ICE regulations
interpret Section 1231 to authorize ICE to stay a removal order as “appropriate,”
see 8 C.F.R. § 241.6(a), and ICE itself declined effectuate Mr. Millan-Vasquez’s
removal based on his prior deportation order. Moreover, departure control orders
are available to delay the removal of a noncitizen criminal defendant. 6 Although the Court need not reach the question here, amici also maintain that
detention of defendant by ICE after his release from pretrial detention would not be
permitted under either the Bail Reform Act or the immigration statutes. Under the
Bail Reform Act, if the government elects to proceed with criminal prosecution,
the district court’s release order, rather than any immigration statutes, should
20
of another agency of the federal government rather than in the hands of a state
custodian, informal coordination will suffice. See supra; United States v. Brown,
169 F.3d 344, 347 n.2 (6th Cir. 1999) (noting that it is unnecessary to file a writ of
habeas corpus ad prosequendum when a defendant is in federal custody “as a writ
is only necessary to secure the attendance of a person who is being held by another
jurisdiction”). But, as the government notes, see Gov’t Statement at 17-18, it is
nonetheless within the discretion of the district court to issue a writ of habeas
corpus ad prosequendum to secure the presence of a defendant held in immigration
detention should other means fail. See 28 U.S.C. § 2241(c)(5) (a writ of habeas
corpus may issue for a prisoner if “[i]t is necessary to bring him into court to
testify or for trial”).7 See also Tapia, 2013 WL 557278, at *2, 5 (noting that
magistrate judge issued writ of habeas corpus ad prosequendum to ICE to ensure
control. See 18 U.S.C. § 3142(d). In addition, even if immigration statutes were to
apply, ICE’s general detention power is limited to maintaining custody for the
purpose of effectuating removal. See Zadvydas v. Davis, 533 U.S. 678, 699
(2001). In any event, even if detention were permitted, it would not prevent Mr.
Millan-Vasquez’s appearance in this case. 7 The habeas statute thus codifies the common law writ of habeas corpus ad
prosequendum. See United States v. Mauro, 436 U.S. 340, 357-58 (1978)
(discussing the purpose of the writ of habeas corpus ad prosequendum and its
codification at 28 U.S.C. § 2241). Writs of habeas corpus ad prosequendum are
often requested by prosecutors and issued by district courts to ensure that state
prisoners are present for federal criminal proceedings. See, e.g., United States v.
Neal, 564 F.3d 1351, 1353 (8th Cir. 2009) (noting that federal prosecutors obtained
custody of defendant from state prosecutors by means of a writ of habeas corpus
ad prosequendum); Toledo v. Warden, No. 08–3671 (NLH), 2009 WL 2182597, at
*1 (D.N.J. July 21, 2009) (same).
21
noncitizen defendant’s appearance for criminal proceedings); Barnes v. Black, 544
F.3d 807, 809 (7th Cir. 2008) (noting that § 2241(c)(5) can be used to obtain
custody “from a state facility as well as a federal one”); United States v. Stephens,
315 F. Supp. 1008, 1011 (W.D. Okla. 1970) (“persons already in the custody of the
United States. . . . may be transferred from the district of detention to the district of
trial by writ of habeas corpus ad prosequendum”). The district court and the U.S.
Attorney thus clearly have the ability to ensure an immigration detainee’s presence
at federal criminal proceedings. The possibility of administrative immigration
detention is therefore not a basis for pretrial criminal detention under the Bail
Reform Act.
II. NEITHER AN ICE DETAINER NOR A PREVIOUS REMOVAL
ORDER MEANS AN INDIVIDUAL WILL BE HELD IN
IMMIGRATION DETENTION OR REMOVED FROM THE
UNITED STATES.
Finally, the government’s contention that ICE will certainly detain and
remove Defendant from the United States is incorrect as a matter of law.8 First, the
issuance of an ICE detainer in no way requires that a noncitizen be taken into
custody. By definition, an immigration detainer merely
serves to advise another law enforcement agency that [ICE] seeks
custody of an alien presently in the custody of that agency, for the
purpose of arresting and removing the alien. The detainer is a request
8 Although the government characterizes the district court holding as a finding of
fact, see Gov’t Statement at 12, the question of whether removal is certain is a
legal issue and therefore subject this Court’s de novo review.
22
that such agency advise [ICE], prior to release of the alien, in order
for [ICE] to arrange to assume custody, in situations when gaining
immediate physical custody is either impracticable or impossible.
8 C.F.R. § 287.7(a). A detainer is only a notification to another agency of ICE’s
interest in a particular inmate and a request to hold the inmate for a limited period
to permit ICE to arrange custody. It does not guarantee, much less require, that
ICE will take a defendant into custody. See Xulam, 84 F.3d at 442 n.1 (“The fact
that a detainer has been lodged does not mean [the defendant] necessarily will be
taken into custody by the INS if released by [the] Court.”).
Even when a prior removal order has been reinstated, the defendant will not
necessarily be removed from the United States. Although the statute governing
reinstatement of prior orders generally bars collateral attacks on the prior removal
order and applications for immigration relief, see 8 U.S.C. § 1231(a)(5),
individuals may raise any number of challenges to the reinstatement order.
Noncitizens subject to reinstatement may still seek withholding of removal or relief
under the Convention Against Torture. See 8 C.F.R. § 241.8(e). Moreover,
reinstatement orders are subject to this Court’s review. See Ochoa-Carrillo v.
Gonzales, 437 F.3d 842, 843 (8th Cir. 2006) (citing 8 U.S.C. § 1252(a)).
Moreover, in criminal re-entry cases like this one, the defendant may prevail
in the criminal matter through a successful collateral attack on the prior removal
order—which would also invalidate the prior removal order. See United States v.
23
Mendez-Morales, 384 F.3d 927, 929 (8th Cir. 2004) (holding that, under 18 U.S.C.
§ 1326(d), the noncitizen may collaterally attack a prior removal order upon
showing that “(1) an error in the deportation proceedings rendered the proceedings
fundamentally unfair in violation of due process, and (2) the error functionally
deprived the alien of the right to judicial review”); see also United States v. Santos-
Vanegas, 878 F.2d 247, 251 (8th Cir. 1989) (invalidating deportation order where
noncitizen was “never apprised . . . of his right to appeal the administrative
decision in federal court” in case where immigration judge applied improper legal
standard to deny asylum claim); United States v. Mendoza-Lopez, 481 U.S. 828,
839-40 (1987) (invalidating deportation order where immigration judges failed to
explain noncitizen’s potential eligibility for suspension of deportation and
permitted uninformed waiver of right to appeal).
In other cases, defendants may have valid claims to U.S. citizenship, and
thus not be properly subject to prosecution or removal. See, e.g., United States v.
Juarez, 672 F.3d 381, 384 (5th Cir. 2012) (invalidating illegal reentry conviction
where defense counsel failed to independently research and investigate derivative
citizenship defense); Perez v. United States, 502 F. Supp. 2d 301, 302-03
(N.D.N.Y. 2006) (granting habeas relief to defendant who pled guilty to illegal
reentry, but later discovered that he had attained derivative citizenship based on his
mother's naturalization); United States v. Ramirez-Garcia, No. M0-00-CR-138,
24
2001 WL 561603, at *3-*4 (W.D.Tex. May 22, 2001) (permitting a defendant in
illegal reentry case to withdraw guilty plea in order to assert a derivative
citizenship challenge).
In sum, the mere issuance of an ICE detainer and existence of a prior order
of removal do not necessarily mean that a defendant will be taken into ICE custody
or removed from the United States. Given the limited significance of detainers,
and the complexity of reinstatement proceedings, a district court is not justified in
assuming that a defendant with a detainer and prior removal order who is released
on bond will be removed from the United States before trial. Instead, in
determining whether a defendant is likely to appear for trial, the court must rely on
the usual considerations of flight risk and danger without any presumption that a
detainer or previous order of removal will render the defendant unavailable.
CONCLUSION
Amici curiae urge the Court to reverse the decision of the district judge
below and remand for a new detention hearing.
Dated: April 1, 2013 Respectfully submitted,
s/Michael KT Tan
Michael KT Tan
Cecillia Wang
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
25
Immigrants’ Rights Project
39 Drumm Street
San Francisco, CA 94111
(415) 343-0779
Randall C. Wilson
AMERICAN CIVIL LIBERTIES
UNION OF IOWA
505 5th Avenue, Ste. 901
Des Moines, IA 50309
(515) 650-1980
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